Cite as In re Evans, 57 Cal.Rptr.2d 314 (Cal.App.4 Dist. 1996)
In re Evans on Habeas Corpus.
Dick G. Evans, Petitioner,
v.
Superior Court of the State of California for the County of
Riverside, Respondent
The People, Real Party in Interest.
No. E018197.
Court of Appeal, Fourth District, Division 2.
Oct. 3, 1996.
Ralph S. Greer, Glendale, for Petitioner.
Grover Trask, District Attorney and Kelton A. Tobler, Deputy
District Attorney, for Respondent.
OPINION
McKINSTER, Associate Justice.
This petition raises the issue [footnote 1] of whether Penal
Code section 12021, subdivision (c) unconstitutionally
discriminates among various classes of persons who are subject to
a ten-year prohibition on possessing firearms as a consequence of
misdemeanor convictions. [footnote 2] We conclude that it does. In
order to preserve as much of the legislative intent as possible, we
will construe the statute to include petitioner within its reach,
and remand with directions that petitioner be allowed to seek
relief under that subdivision.
POSTURE OF THE CASE
In 1992, petitioner Dick Evans entered a plea of guilty to
spousal abuse. (Pen.Code, section 273.5.) The offense was
classified as a misdemeanor, and Evans was placed on summary
probation.
At the time, section 12021, subdivision (c)(1) provided that
any person convicted of specified misdemeanors who, within ten
years of the conviction, had any firearm in his or her possession
or under his or her control, was guilty of a public offense.
[footnote 3] Spousal abuse was not one of the listed misdemeanors,
but was added by amendment in 1993. [footnote 4]
Section 12021 had first been amended to include misdemeanors
as offenses subjecting the convicted person to a firearms prohibi-
tion in 1990, when subdivision (c) was originally added. Apparently
the Legislature was soon concerned that the new law might operate
with undue harshness on certain misdemeanants, because in 1991 it
added subdivision (c)(2) to the statute. As then enacted, this
subdivision allowed "[a]ny person, whose continued employment or
livelihood is dependent on the ability to legally possess a
firearm, who is subject to the prohibition imposed by this
subdivision because of a conviction prior to the effective date of
the amendments which added this paragraph to this section [i.e.
January 1, 1991] [footnote 5] may petition the court for relief
from this prohibition." The effect was that persons who had
suffered qualifying misdemeanor convictions before section 12021
was amended to impose the firearm prohibition, and who needed
firearms in their work, could seek modification or elimination of
the prohibition. Persons whose qualifying convictions occurred
after the effective date of the 1990 amendment, on the other hand,
had no such opportunity. This was not unreasonable, however, as
those persons were legally on notice of the weapons prohibition
when were convicted. [footnote 6]
As noted above, in 1993 the Legislature further amended
section 12021 to add spousal abuse as a qualifying misdemeanor.
However, it also made additional changes which affected the right
to seek relief. It amended subdivision (c)(2) so that the
provision now
applies only to peace officers who need a firearm as a condition of
their employment, not to any person who does. Furthermore, it
limited the right to misdemeanant peace officers who had been
convicted of one of only three offenses-spousal battery, violation
of a domestic violence protective order, and stalking. (sections
273.5, 273.6, and 649.9.)
The 1993 amendments also added subdivision (c)(3), which
applies to any person subject to the general prohibition because of
a qualifying conviction suffered before January 1, 1991. Thus,
subdivision (c)(2) now applies only to peace officers and only to
those whose qualifying misdemeanor convictions were for one of
three specified offenses; however, those convictions need not have
been suffered before these offenses were added as "triggering"
offenses. On the other hand, subdivision (c)(3) now applies
broadly to any misdemeanant subject to the weapons prohibition, but
only if the qualifying conviction occurred before January 1, 1991.
The result of all this was that as of January 1, 1994,
petitioner Evans found himself forbidden to possess a firearm.
Finding this burdensome, he filed a petition in the municipal court
seeking relief under the statute, which requires that such a
petition be filed in the court which rendered the conviction.
However, it appears that upon reading section 12021, subdivision
(c) more closely, Evans became concerned that the relief provisions
might be held not to apply to him. Accordingly, he filed a
supplement in which he challenged the imposition of the firearms
prohibition to him on numerous, largely constitutional, grounds.
The case, however, still bore a municipal court title and caption.
The trial court granted Evans relief on the asserted ground of
ex post facto violation. The People eventually appealed to the
Appellate Department of the Superior Court, which reversed without
opinion. Evans' efforts to have the case certified to this court
were unsuccessful, and he eventually filed this petition.
[footnote 7]
DISCUSSION
The trial court held that application of the firearm
prohibition to Evans constituted an ex post facto violation. This
was incorrect.
The United States Constitution, article 1, sections 9 and 10
and the California Constitution, article 1, section 9 prohibit the
passage of ex post facto laws. As arguably applicable to Evans, a
statute violates the ex post facto rule if it increases the
punishment for a crime after its commission. (Calder v. Bull (1798)
3 U.S. (3 Dall.) 386, 390-392, 1 L.Ed. 648.)
The instant case is not reasonably distinguishable from that
treated in this court's decision in People v. Mills (1992) 6 Cal.
App.4th 1278, 8 Cal.Rptr.2d 310. There, subdivision (a) of section
12021 provided, at the time of defendant's predicate conviction,
that a felon could not possess a concealable firearm. Thereafter,
the statute was amended to prohibit the possession of any firearm
by an ex-felon. In rejecting defendant's ex post facto claim, we
explained that although "it is true that the new statute only
applies to defendant because he has the status of a convicted
felon, and he achieved that status before that statute became
effective [ ][n]evertheless, the new statute only applies to an
event occurring after its effective date, i.e. defendant's
possession of a shotgun.. . . " (6 Cal.App.4th at p. 1285, 8
Cal.Rptr.2d 310.) We held that defendant's conduct violated a new
statute, not the one for which he had been previously convicted,
and analogized to the application of newly-enacted prior-felony
enhancements as applied to convictions antedating the effective
date of the enhancement statutes. Such statutes, as we noted, are
regularly applied to pre-enactment convictions. (Id at p. 1287, 8
Cal.Rptr.2d 310; see People v. Jackson (1985) 37 Cal.3d 826, 833,
210 Cal.Rptr. 623, 694 P.2d 736 [overruled on other grounds in
People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748
P.2d 1150] and People v. Green (1995) 36 Cal. App.4th 280, 283, 42
Cal.Rptr.2d 249.) Mills has been followed in Helmer v. Miller
(1993) 19 Cal.App.4th 1565, 1571, 25 Cal.Rptr.2d 8 and controls
here. [footnote 8]
We also reject Evans' contention that his 1992 plea was
invalid because he was not informed of the future consequences of
his plea. Contrary to his assertion, this is not a constitutional
issue; the requirement of advisement of the consequences of a plea
is judicially-created, not constitutional . (In re Ronald E.
(1977) 19 Cal.3d 315, 322, 137 Cal.Rptr. 781, 562 P.2d 684.)
Assuming that the issue was properly raised in the format chosen by
petitioner, he failed to establish by competent evidence that he
would not have entered the plea had he known of the future
consequence. (See In re Moser (1993) 6 Cal.4th 342, 352, 24
Cal.Rptr.2d 723, 862 P.2d 723; In re Ronald E., supra, 19 Cal.3d at
p. 325, 137 Cal.Rptr. 781, 562 P.2d 684; People v. Castaneda (1995)
37 Cal.App.4th 1612, 1622, 44 Cal.Rptr.2d 666.) We do note, how-
ever, that our rejection of this claim would not preclude Evans
from raising it in the future, for example if he were to be
prosecuted for violating section 12021, subdivision (c).
We turn now to Evans' equal protection argument. It has
merit.
Following the various additions and amendments to the statute,
misdemeanants subject to the firearms prohibition fall into three
classes: 1) peace officers convicted of spousal battery, violating
a domestic violence restraining order, or stalking; 2) any misde-
meanant who suffered the conviction of any qualifying misdemeanor
before January 1, 1991; and 3) misdemeanants who suffered the
qualifying conviction after January 1, 1991. Persons falling into
the first two categories may seek relief from the prohibition;
those in the third category, such as Evans, cannot. Obviously
petitioner is not treated similarly to those in the first two
categories. The question which we must determine is whether the
distinctions drawn by the Legislature are constitutionally
permissible.
The equal protection clauses are found in the Fourteenth
Amendment to the United States Constitution and section 7(a) of
article I of the California Constitution. The scope and effect of
the two clauses is the same. (Brown v. Merlo (1973) 8 Cal.3d 855,
861, 106 Cal.Rptr. 388, 506 P.2d 212.)
The crux promise of equal protection is that persons
similarly situated shall be treated equally by the laws. (In re
Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d
549.) However, neither clause prohibits legislative bodies from
making classifications; they simply require that laws or other
governmental regulations be justified by sufficient reasons. The
necessary quantum of such reasons varies, depending on the nature
of the classification.
Legislation which discriminates on the basis of a "suspect
class" or touches on a fundamental right is subject to judicial
examination under the "strict scrutiny" test. (See e.g. Loving v.
Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817,18 L.Ed.2d 1010; Board of
Supervisors v. Sacramento Local Agency Formation Com'n (1992) 3
Cal.4th 903, 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198.) However,
most legislation challenged under the equal protection clause is
evaluated merely for the existence of a "rational basis" supporting
its enactment. (Cleburne v. Cleburne Living Center, Inc. (1985) 473
U.S. 432, 446, 105 S.Ct. 3249, 3257-3258, 87 L.Ed.2d 313; Tribe,
American Constitutional Law (2d ed. 1988) section 16-3, p. 1444,
fn. 10.) Under the latter analysis, the question is whether the
classification bears a fair relationship to a legitimate public
purpose. (Plyler v. Doe (1982) 457 U.S. 202, 217, 102 S.Ct. 2382,
2395, 72 L.Ed.2d 786.)
The People argue that the rational basis test applies here,
and we agree. The classification of misdemeanants does not involve
a typically suspect classification such as race or sex. (E.g.
Loving v. Virginia, supra.) The private right to bear arms is not
a "fundamental" right under the Second Amendment to the United
States Constitution. (United States v. Cruikshank (1875) 92
U.S. 542, 553, 23 L.Ed. 588; United States v. Nelsen (8th Cir.1988)
859 F.2d 1318, 1320; Pencak v. Concealed Weapon Licensing Board for
the County of St. Clair (E.D.Mich. 1994) 872 F.Supp. 410, 413-413.)
However, we find that the classification fails even under this
standard.
Evans attacks the special treatment given to peace officers
under the current statute, but we find no constitutional defect
here. It will be recalled that it is limited to those convicted of
offenses which tend to arise out of troubled personal
relationships. Legislative history materials indicate that one
reason for the provision was that the failure to allow for any
appeal of the firearms prohibition might well discourage defendants
from pleading guilty under an agreement for mandatory counseling-
considered a "valuable tool" in such cases, which may be uniquely
suited to disposition by counselling rather than punishment.
Although this appeal provision is now limited to peace officers,
and does not extend to any person whose occupation requires the use
of a firearm, the distinction is rational. Few other occupations
require the ability to possess a firearm and none that we can think
of is of such a skilled, professional, and typically long-term
nature as is law enforcement. The Legislature could have
reasonably determined that other persons subject to the firearms
prohibition could obtain alternative employment.
However, the statute also allows any person who suffered a
qualifying conviction before January 1, 1991 to petition for
relief. At its inception, this provision too had a sensible
purpose. It allowed those who had been convicted (and in most
cases, committed the offense) before the firearms prohibition
became law to seek relief, presumably out of what the Legislature
saw as a matter of fairness. In fact, it remains a reasonable
addition to the statute.
The problem is that persons who suffered qualifying
convictions after January 1, 1991, but before the misdemeanors of
which they were convicted were added to the statute, cannot seek
relief even though conceptually they are situated exactly the same
as are the pre-1991 misdemeanants. In both cases the convictions
were suffered at a time when the conviction carried no consequence
relating to firearms. One group of such misdemeanants can seek
relief under section 12021, subdivision (c)(3), but the other,
which includes Evans, cannot.
One possible basis for the distinction would be the nature of
the crimes committed, but this cannot withstand scrutiny. For one
thing, it is obvious that the Legislature does not think that the
domestic/stalking cases should, as a rule, be treated more rigidly
than the others included in section 12021, subdivision (c).
Furthermore, it is impossible to make a rational distinction
unfavorable to Evans between the offenses included when the statute
was expanded to cover some misdemeanors in 1990, and those offenses
added in 1993.
The original version included such offenses as threatening
public officials, assault with a deadly weapon, and shooting at an
occupied dwelling. (sections 71, 76, 245, 246.) These offenses are
certainly no less serious than simple assault, spousal abuse, or
violation of a restraining order; there is no rational basis for
allowing a misdemeanant convicted of assault with a deadly weapon
to seek relief, while the defendant convicted of simple assault
cannot. Thus, the statute cannot be sustained on this theory.
The People assert, however, that the distinctions between
those covered by the 1990 law and the 1993 version are justified as
a matter of timing. They argue that by 1994-when the 1993 version
became effective-those persons (other than peace officers under
subdivision (c)(2)) who were permitted to seek relief could show at
least three years of good behavior in support of their application.
This argument fails for two reasons.
First, when the original provision for relief was added in
1991, it allowed covered misdemeanants to seek relief after a
minimum lapse of only one year, and in fact appears to have been
designed to ameliorate the "surprise" factor of the new enactment;
there was no requirement for any particular duration of good
behavior. More significantly, there is no provision for post-1991
misdemeanants to seek relief at any time during the ten year period
of disability, no matter how unblemished a record they may compile.
Even accepting the People's argument at face value, it is
irrational, in the constitutional sense, to allow some
misdemeanants to seek relief after one, three, or five years of
good behavior, but to bar other misdemeanants from seeking such
relief after seven or nine years of law-abiding virtue.
In our view, the distinction drawn by the statute is probably
inadvertent. We strongly suspect that in rewriting what is now
subdivision (c)(3), the Legislature simply failed to take into
consideration the fact that new misdemeanors had been added to
subdivision (c)(1) since the time of its original enactment, thus
creating a new group of "surprised" misdemeanants whose post-1991
convictions had not, at the time suffered, subjected them to
section 12021. In making this presumption, we bear in mind the
Legislature's evident 1991 concern to provide an avenue for relief
to those misdemeanants whose earlier convictions had not subjected
them to the firearms prohibition in determining the remedy in this
case.
We find section 12021, subdivision (c) unconstitutional in
that it denies the opportunity for relief to post-1991
misdemeanants who suffered qualifying convictions at a time when
the convictions did not subject them to the firearm prohibition
because the misdemeanors of which they were convicted had not yet
been added to the statute. [footnote 9] However, this does not mean
either that no firearms prohibition is proper, or that no defendant
can seek relief.
"'Where a statute is defective because of underinclusion [as
here], there exist two remedial alternatives; a court may either
declare [the statute] a nullity and order that its benefits not
extend to the class or that the Legislature intended to benefit, it
may extend the coverage of the statute to include those who are
aggrieved by the exclusion.", (Califano v. Westcott (1979) 443 U.S.
76, 89, 99 S.Ct. 2655, 2663, 61 L.Ed.2d 382, quoting Mr. Justice
Harlan's concurring opinion in Welsh v. United States (1970) 398
U.S. 333, 361, 90 S.Ct. 1792, 1807-1808, 26 L.Ed 308.) Our Supreme
Court has also recently recognized the power of the courts of this
state not only to construe statutes in favor of constitutionality
(an impossible task here due to the clear language of section
12021), but also to "reform" them. (Kopp v. Fair Pol. Practices
Com'n, (1995) 11 Cal.4th 607, 47 Cal.Rptr.2d 108, 905 P.2d 1248,
passim.) It has noted the frequent use of this judicial power in
equal protection cases by the United States Supreme Court,
including the decision in California v. Westcott.
In choosing between nullification and extension, a court
must, of course, consider the presumed desires of the Legislature
if faced with the same decision. (Heckler v. Mathews (1984) 465
U.S. 728, 739 at fn. 5, 104 S.Ct. 1387, 1395 at fn. 5, 79 L.Ed.2d
646; Kopp, supra, at p. 635, 47 Cal.Rptr.2d 108, 905 P.2d 1248.) In
this case, the decision is a simple one. Since 1991 the
Legislature has evidenced a consistent concern for those convicted
of pre-1991 misdemeanors and thus "surprised" by the addition of
misdemeanor offenses to section 12021. There is clearly no
legislative policy against offering an avenue of relief from the
firearms prohibition. Furthermore, the fact that a post-1991 mis-
demeanant convicted of one of the offenses added to the statute in
1993 may seek relief from the firearms prohibition does not mean
that he will get it. Subdivision (c)(3) requires the court to find
that the petitioner is likely to use a firearm in a safe and lawful
manner, and that he does not have any other convictions under the
subdivision; it is vested with broad discretion not only in whether
or not to grant relief, but in fashioning conditions of relief.
Thus, the mere extension of the statute's reach will not result in
the arming of large numbers of dangerous persons.
Accordingly, we conclude that the provisions of section 12021,
subdivision (c)(3) must be extended to all those who committed
qualifying misdemeanors at a time when the offenses were not listed
in section 12021, subdivision (c), and thus did not subject them to
a firearms prohibition. The judgment of the appellate department
is reversed, and the matter is remanded to the municipal court with
directions to consider Evans' petition on its merits as brought
under subdivision (c)(3).
RAMIREZ, P.J., and RICHLI, J., concur.
FOOTNOTES
1. Petitioner actually raises several other issues, some of which
we will discuss in passing; however, the issue noted here is
dispositive.
2. All subsequent statutory references are to the Penal Code unless
otherwise specified.
3. The offense is a "wobbler," punishable either by state prison or
jail time.
4. Government Code section 9600, subdivision (a), provides that
statutes enacted at regular sessions take effect on January 1 of
the year following. Thus, this 1993 amendment became effective on
January 1, 1994. The amendments made in 1991 to which we will
refer became effective January 1, 1992.
5. The reference to "this paragraph" must be to subdivision (c) as
initially enacted in 1990. If it were intended to refer to the
1991 amendment, it would have been far easier and clearer simply to
have said "prior to the effective date of this amendment."
Furthermore, making the new provision only applicable to those who
suffered qualifying misdemeanor convictions before the misdemeanors
were added to section 12021 serves the obvious purpose of
amelioration.
6. Although not necessarily when the offense occurred.
7. Because the People have agreed that we should decide the issue
raised by the petition, we may gloss over the procedural
peculiarities of this case, merely noting them for the record. The
first occurred when the trial court elected to hear Evans' petition
as a superior court, presumably under the trial judge's cross-
appointment. The trial judge may well have recognized that,
sitting as a municipal court, there was no jurisdiction to hear a
nonstatutory petition for writ of mandate. (Code Civ.Proc., section
86.)
The People first filed a notice of appeal with this court, but
we dismissed the appeal, reasoning that the Appellate Department of
the Superior Court was the proper forum for review-perhaps relying
upon the apparent municipal court title and number. (A decision
which, on further reflection, we now find questionable.) The People
then dutifully appealed to that court, which not only reversed the
judgment, but certified the case to us for decision on the issue of
whether it, the Appellate Department, had jurisdiction over the
case at all. We denied transfer on the basis that the
certification was untimely. (See Cal.Rules of Court, rule 63.) Due
to the present posture of the case, however, we need not resolve
the interesting question presented by the Appellate Department and
our own previous dismissal of the original appeal, We have juris-
diction at least in certiorari and habeas corpus to review the
Appellate Department's decision even if the requirements for
certification and/or transfer are not met. (See generally 9 Witkin,
Cal. Proc., Appeals, section 725.)
8. Although the People filed no response in the trial court, Evans
very properly drew the court's attention to both Mills and Helmer.
However, Evans made no sensible argument distinguishing these cases
or, the ex post facto issue. It is not clear why the trial court
did not feel obligated to follow precedent from a higher court.
(Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450,
455, 20 Cal.Rptr. 321, 369 P.2d 937; People v. Zimmerman (1993) 15
Cal.App.4th Supp. 7, 10, 19 Cal.Rptr.2d 486.)
9. In light of this conclusion, we need not reach, inter alia,
Evans' arguments based on substantive due process. To some extent
the protection of offered by that concept overlaps that of equal
protection; both prohibit governmental action which is "arbitrary,
irrational, or capricious" or does not bear a "real and substantial
relation to the object sought to be obtained." (Coleman v.
Department of Personnel Administration, (1991) 52 Cal.3d 1102,
1124-1125, 278 Cal.Rptr. 346, 805 P.2d 300.) in this case both the
firearms prohibition and the provisions for relief are reasonable
approaches to a valid goal; however, the distinctions drawn could
well be deemed arbitrary within the meaning of substantive due
process.